FREEDOM TO TESTATE

In the recent case of Spence, a Superior court judge, ruled that a pastor of black origins could not disinherit his daughter on the sole grounds that she had given birth to a mulatto child since his choice violated public orders and the Charter of Rights and Freedoms.

The decision rendered was vary audacious on behalf of the presiding judge since the last will of the pastor mentioned that he disinherits his daughter since he had lost contact with her for many years. There was absolutely no mention of the mulatto child.

Back in 2002, the pastor had cut his contact with his daughter mentioning to her that no child of a white man would ever enter his house. The judge decided that the reason given by the pastor to disinherit his daughter was based on the pretext to cover up his racist motives.

The principal to freely testate

In regards to estate matters in Quebec, there is an important principal named “testamentary freedom.”

Primarily, a person can do his/her will as he/she desires and change it as many times without having to justify his/her choices. The testator may include any clause as he/she sees fit. However, there are two limitations to this freedom, one being a testamentary disposition violating public order and the other being the violation the Charter of Rights and Freedoms.

In the decision Trahan[1], the testator lived with three of his friends at a given address in St-Grégoire. Upon his death and in accordance to his will he wanted to set forward a testamentary trust legating 1/3 of his assets to his three friends, 10 years after his death, provided that all three are still leaving together at the same given address.

The court decided that this clause violated pubic order and the right to privacy under article 5 of the Charter of Rights and Freedoms, because for these three parties to receive any money they would be required to live in the said address for another 10 years even though the relationship between them might have allowed them to.

In another decision Curtin- Savard[2], the late mother had included in her will a clause stating that in order for her children and grandchildren to inherit , they must all keep the family name Curtin- Savard. The court annulled the clause on the grounds that there was violation of public order in accordance to art 757 of the C.C.Q and the right of name in section 3 of the Charter of Rights and Freedoms.

How does the case of Spence apply in Quebec?

It is important to distinguish that this decision stems from the Superior Court of Ontario and not Quebec. Therefore, this decision will most likely no impact on our judicial ruling.

Judges will usually use the exact wording found in the will in order to decide the validity or not of a specific clause and whether or not that clause respects public order and the Charter of Rights and Freedoms.

It is very dangerous to invalidate a testamentary disposition or an entire will due to these violations and in consequence change the testator’s intentions which are not reflected by his will, as did the judge in Spence case. What if the only true reason why the pastor disinherited his daughter was because they had lost contact with one another?

Any judge that is required to rule on such matter needs to find a balance between the freedom to testate and the respect of the public orders and the Charter of Rights and Freedoms.

[1] 2004 CanLII 12577 (QC CS)

[2] 2012 QCCS 3523

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The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.

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